Appeal 2007-1070
Application 09/467,901
However, Frank teaches different methods of detecting IgE using different
types of labeling reagents (col. 8, l. 50 to col. 9, l. 60), only one embodiment
which uses anti-IgE antibodies. In contrast, all Frank’s embodiments utilize
FcεR to detect IgE. FcεR as a detection reagent is characterized by Frank as
its “discovery” (Frank, col. 2, ll. 13-15; FF 11-13). This discovery is not
masked or denigrated by Frank’s teaching that FcεR can be used in different
assay formats (Br. 15-16), including formats which combine it with an anti-
IgE antibody. To the contrary, these teachings show the suitability of FcεR
in a wide range IgE detection methods, providing the reason to have
combined Frank’s disclosure with Johansen.
We also agree with the Examiner that Frank’s teaching that FcεR can
be used to detect IgE antibodies in a sample would have led a person of
ordinary skill in the art to reasonably expect that FcεR could be used
successfully in Johansen’s IgE detection method (Answer 9). Appellant
argues that the Examiner has not satisfied the initial burden of showing a
reasonable expectation of success (Br. 16), but has not explained why
Frank’s disclosure that FcεR works to detect IgE in a biological sample is
insufficient evidence to meet this burden.
Claim 23
It is stated by Appellant, especially with respect to claim 23 (Br. 19),
that
Prior systems that use, for example, anti-IgE antibodies to bind
to the IgE antibodies are artificial and useful for simply
measuring the concentration of specific immunoglobulins in a
sample. In fact, it can be said that prior systems are artificial
because they measure the total concentration of
immunoglobulin in a sample. See specification at page 1, lines
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